JUDGMENT B.B. Agarwal, J.
1. This first appeal has been filed against the judgment and award dated 26.5.1981 passed by Sri B.N. Jain, Presiding Officer, Nagar Mahapalika Tribunal, Kanpur in Land Acquisition Reference No. 90 of 1973 arising out of Land Acquisition Award No. 34 dated 31.12. 1968 whereby the Claimant was awarded compensation for his acquired land @ Rs. 15007 = per Bigha. It is to be noted that this amount included the amount of compensation as well as damages as required under Section 48A of the Land Acquisition Act (hereinafter described as the "Act")
2. Brief facts of the case are that the land of the Claimant along with land of other persons was acquired for the Nagar Mahapalika Kanpur through award No. 34 dated 21. 12. 1968 for the execution of Kalyanpur Panki Pandu 'Extension and Green Belt Scheme No. 40. Total land acquired for the purpose was 497.38 acres along with some structures, trees, well etc. Preliminary notification under Section 53 of the Kanpur Urban Development Act No. 6 of 1945 was issued on 8.1.1959 and final notification under Section 60 of the same Act was issued on 23. 12. 1959.
3. Land acquisition Officer in the impugned award fixed compensation for the total land of the petitioner measuring 22 Bigha 2 Biswa 5 Biswansi pertaining to Khata No. 35 as Rs. 27,989.21 Paise only. Feeling aggrieved by the said award of the Land Acquisition Officer, the Claimant made a reference under Section 18 of the Land Acquisition Act for enhancement of the compensation before presiding Officer Nagar Mahapalika, Tribunal Kanpur. The claimant in that petition of reference claimed compensation of his land % Rs. 5000/- per Bigha besides damages as required under Section 48-A of the Land Acquisition Act.
4. The claim was contested before the Tribunal by the State of U.P. and written statement was filed. Besides other averment it was pleaded that the Special Land Acquisition Officer had awarded compensation on the basis of the price prevalent in 1903-64 though the impugned notification was issued in 1959 and, therefore, excessive compensation had been awarded to the Claimant. The acquisition of the land was not for commercial purposes and it is absolutely incorrect that the land was of the value of Rs. 5,000/= per Bigha at the time of preliminary notification. It is also urged that the land acquired in this case can not be compared with the land at Ghaziabad and no reliance can be placed on the market value of the land prevalent at the time of the ward. Nagar Palika sells land after developing or after making provision for development thereof. The circumstance referred by the petitioner are subsequent to the issue of preliminary notification and could not be relied upon.
5. The learned Tribunal after considering the evidence on record and after hearing learned counsel for the parties passed the order dated 26.5.1981 in the matter awarding compensation/damages to the tune of Rs. 10,481.74 P. In addition to the compensation already awarded by the Land Acquisition officer to the tune of Rs. 27,989.21 Paise. It has been observed by the learned Tribunal in the judgment that the special Land Acquisition officer had awarded Rs. 27,705.00 as compensation for 22 Bigha 2 Biswas 5 Biswans land of the Claimant pertaining to Khata No. 35 by calculating compensation @ Rs. 1800/- for belt 'A' even land, Rs. 1500/-per Bigha for belt 'A' uneven land, Rs. 1200/- per Bigha for Belt 'A' dug up land, Rs. 600/-per Bigha for belt 'B' uneven and dug up land, at the rate of Rs. 900/- for even land, besides compensation for the well etc. However, the reference was made before the Tribunal and damages were also claimed by the Claimant under Section 48-A of the Act, as the award was pronounced by the Land Acquisition Officer after a period of about 9 years from the date of the notification. Learned Tribunal instead of calculating specific amount of damages for each type of land of the Claimant, awarded compensation/damages to the Claimant @ Rs. 1500/- per Bigha for the entire land of each category. Against that order of the Tribunal the present appeal has been filed.
6. Heard the learned counsel for the parties and perused the record of the case. It is conceded by the learned Standing Counsel that as per observation of the learned Tribunal the claimant is entitled to get damages as per provisions of Section 48-A of the Act or Section 376 of the Nagar Mahapalika Adhiniyam, because the award in this case has been given by the Land Acquisition officer after the expiry of period of two years from the date of issue of acquisition notification. However this argument is that the appellant's claim for compensation at the rate higher than Rs. 1500/- per Bigha is barred by the provisions of Section 25 of the Act.
7. The learned counsel for the appellant, on the other hand has drawn my attention to the provisions of Section 25 of the Act as amended by Act No. 68 of 1984. In my opinion, no benefit of this amended Section can be given to the appellant/Claimant as the said section was substituted or had come into force after the passing of the award by the Tribunal. The learned Tribunal has also framed specific issue No. 8 on the point and it has given a finding against the petitioner who had claimed compensation @ Rs.4000/-per Bigha before the Tribunal. It has been observed by the Tribunal in the judgment and order that in view of the provisions of Section 25 of the Act, the claimant could not be awarded compensation @ higher than Rs. 1500/- per Bigha and the claim in excess of that was barred by the provisions of Section 25 of the Act. Learned Counsel for the appellant could not show me any evidence that the Claimant had demanded compensation before the special Land Acquisition Act at anytime @ Rs. 4000/- per Bigha or at any rate higher than Rs. 1500/- per Bigha. The contention of the opposite party, on the other hand is that the claimant had claimed compensation under Section 9 of the Act @ Rs.1500/- per Bigha and, therefore, claim in excess of Rs. 1500/- per Bigha could not be awarded to him by the Tribunal. This fact has been conceded by the learned counsel for the appellant during the course of arguments that the appellant had not demanded compensation at the rate higher than Rs. 1500/- per Bigha at any time in his objections before the Collector.
8. My attention was drawn by the learned counsel for the appellant to the observation of the Tribunal at page 16 of the Judgment (Paper No. 101 of the paper book) where it has been observed by the Tribunal:
"The High Court had awarded compensation at the rate of Rs. 4000/- per Bigha for the land falling in category 'A' ad Rs. 3000/- per high for the land in category 'B' and Rs. 27000 - per bigha for uneven land falling in category 'A' ad Rs. 18000/- for even land of category 'B'. In view of the ruling of the Hon'ble High court the petitioners in this cae would have been entitled to compensation cum damages at the rate of Rs. 4000/- per bigha in respect of land of belt 'A', Rs. 2700/- per bigha in respect of uneven and sloppy of belt 'A' Rs. 2160/- dug up land of belt 'A' and Rs. 3000/- per bigha in respect of even land of belt 'B', Rs. 1800/- per bigha in respect of uneven land of belt 'B' and also Rs. 1800/- per bigha in respect of dug up land of belt 'B'."
The statement form II on record shows that out of 22 bighas 2 biswas 5 biswansis land 3 bighas 4 biswas land was placed in belt 'A' dug up, 2 bighas 17 biswas in he It 'A' uneven land and 6 bighas 16 biswas 15 biswansis in belt 'A' even land, 2 bighas 7 biswas in belt 'B' in dug up land, 1 bigha 1 biswas belt 'B', un even land and 5 bighas 17 biswas 10 biswansis in bell 'B' even land.
The learned counsel for the applicant did not dispute this fact regarding category of land falling in the aforesaid categories. The Special Land Acquisition Officer had awarded Rs. 27705/- as compensation of 22 bighas 2 biswas 5 biswansis land f the claimant in reference pertaining to Khata No. 35 calculating compensation @ Rs. 1800/- for belt 'A' even land, Rs. 1500/- per bigha for belt 'B' uneven, Rs.1200/- per bigha for belt 'A' dug up land, Rs. 600/-per bigha for belt 'B' dug up land and for the same rate Rs.900/- per bigha for belt 'B' even land."
10. The claimant before the Tribunal besides claiming compensation at some higher rate also claimed damages under Section 48-A of the Land acquisition act. Since the award in this case by the special Land Acquisition
11. Officer had been passed after a period of more than two years from the date of notification therefore in view of the provisions of Section 48-A of the Land Acquisition Act, the Claimant is entitled for damages also. This fact has been conceded by the learned standing Counsel at the time of beginning of his arguments. The learned Tribunal after considering entire amount of compensation regarding each category land of the claimant, for which compensation was awarded for some of the land at the rate of Rs. 1800/- per bigha and for some of the land @ Rs.600/- per bigha calculated amount of compensation/cum damages @ Rs.1500/- per bigha for the entire land of the Claimant. In view of the judgment of the High Court dated 7.5.1981 given in First appeal No. 59 of 1978 Rain Chandra v. State of U.P for the land involved n the same scheme, compensation was awarded (a) Rs. 4000/-per bigha and so on However, the claimant was denied compensation at the higher rate of Rs. 1500/- per bigha due to the reason that he did not make a demand for the compensation under Section 9 of the Act before the Collector at the rate higher than Rs 1500/- per bigha at anytime. But as per order of the High Court, the market value of the land can be accepted on the date of notification to be Rs. 4,000/- per bigha and so on according to its category.
12. There is no dispute that the land of the claimant falls within two categories wherein certain area is of even land and certain area is of uneven land and dug up land in both the categories. The High Court has awarded compensation at different rates for each category of land but since compensation for lowest category of land was more than Rs. 1500/- per Bigha and the Claimant had made a demand of compensation before the collector for his land @ Rs. 1500/- per Bigha only, hence in view of the provisions of Section 25 of the Land Acquisition Act, applicable at that time, the Tribunal awarded compensation to the Claimant at the uniform rate of Rs. 15007/- per Bigha for his entire land. It is to be noted that the Tribunal also included amount of damages in the aforesaid amount of compensation, perhaps the reason is that the special Land acquisition officer had awarded compensation to the Claimant for his uneven and developed land of category 'A' and for even land of category 'B' at a rate lower than Ra.1500/- per Bigha. However, in my opinion, in view of the Allahabad High Court decision dated 7.5.1981 given in first appeal No. 59 of 1078 Ram Chandra v. State of U.P. as the market value of the even lowest category of land in that area was more than Rs. 1500/- per Bigha on the date of the notification, hence compensation for the land of the Claimant could not be awarded at lesser rate than Rs. 1500/- per Bigha. Therefore, I do not agree with the finding of the Tribunal that the compensation @ Rs. 1500/- per Bigha will include amount of damages also. In my opinion, damages should be calculated separately.
13. As the learned Standing Counsel has conceded that the Claimant is entitled to damages also as required under Section 48A-of the Land Acquisition Act, hence I do not feel any need to discuss on the point of admissibility of damages to the Claimant.
14. Now in order to calculate the amount of damages the court below has relied upon the Allahabad High Court decision in the case of Prabhu Lal v. Special Land Acquisition Officer(1973 A.L.J. 656.
15. In the case of Prabhu Lal v. Special Land Acquisition Officer, (A 1973 A.L.J. Page 656) the Hon'ble High Court had laid down as follows:
''The difference between the market value of the land sought to be acquired as it existed on the date when the relevant notification was issued under the Act and on the date when the award was given may be a good measure for assessing the damages payable to the claimants."
16. However, the argument of the learned counsel for the State is that the delay did not cause any damages to the appellant as he remained in possession of the land and derived usufruct therefrom and the Claimant, in any case, has also failed to prove that any loss was caused to him because of delay in the award. It is no doubt true that the Claimant has not produced any documentary evidence to show that he could not raise crop in any of his land from the time of notification up to the time of award or that the yield in his field was not the same which he was having prior to the notification. However, the fact can not be ruled out that the prices were rising and had the award been made within two years of the final notification and compensation would have been paid to the claimant earlier, the claimant could have purchased some other land or property at lesser price than that was prevailing at the time of award and he could have enjoyed the usufruct of the newly purchased land and thus availed the benefit of rise in prices. Therefore, damages can be presumed to have been suffered by the Claimant due to delay in award. As the price of the land is rising day by day, in my opinion, damages under Section 48-A of the Act can not be refused merely because the Claimant remained in possession of the land till the award. However, damages for delayed award has to be assessed on the basis of the difference between market value on the date of notification and the date of the award. The award is dated 13.12.1968 while the market value of the land on the date of notification as per High Court was Rs.4000/- per Bigha for even land of category 'A' and Rs. 3000/- per Bigha for even land of category 'B' and so on. The claimant has filed only one exemplar (sale deed) to show the market value of the land in question on the date of the award. The sale deed, Exhibit 4, is on the record and it is dated 21.8.1968. This is of a date very near to the date of the award. By this sale deed 3 Bigha 7 Biswas of land of Panki was sold for a consideration of Rs. 20,000/- by Daulat ram in favour of Chandrika Prasad. On the basis of the sale deed the market value of the land in question would come to Rs. 6,000/- per Bigha. No other sale deed has been filed by the state to controvert it and, therefore, this sale deed can be said to be as an exemplar in order to calculate the market value of the land in question on the date of the award. The difference in this market value of the land from the market value of the land on the date of notification can be said to be damages which has been incurred by the Claimant due to delay in the award. The market value of the land in question on the date of notification was assessed at Rs. 4,000/- per Bigha for even land of category 'A' and some lower price of other type of land. The compensation has been awarded no doubt at the rate of Rs. 1500/- per Bigha to the Claimant for his entire land but that is due to the reason of provisions of Section 25 of the Lands Acquisition Act. Thus he cannot be awarded damages keeping in mind the actual rate of compensation awarded to the Claimant. The criteria for calculation of damages, as discussed above, is the difference between the market value on the date of notification and the market value on the date of the award. This difference comes to Rs. 2,000/-per Bigha for even land of category 'A'. There is no evidence that the land sold by Daulat Ram vide sale deed dated 21.8.1968 was of inferior quality. Therefore, at the most the Claimant can be awarded damages @ Rs. 2000/= per Bigha for his entire land. Thus Rs. 2,000/- per Bigha is the difference in the market value of the land on the date of award and the date of final notification. Thus, the Claimant, in my opinion, is entitled to damages under Section 48-A of the Land Acquisition Act at the rate of Rs. 2000/- per Bigha. The claimant has also claimed interest on the amount of damages. Learned counsel for the appellant placed reliance on the law laid down by a Single Judge of this Court in the case of Neeta v. the Collector, Agra and Anr. (First Appeal No. 490 of 1983 decided on May 26, 1990) and also reported in 1990 R.D. 333 wherein it has been held that the amount of damages would also be termed as compensation and the Claimant is entitled for interest on the amount of damages also. It would be relevant to mention Section 48-A of the Land Acquisition Act, which runs as below:
___"48-A.Compensation to be awarded when land not acquired within two years:- if, within a period of two years from the date of the issue of the public notice under Sub-Section (1) of Section 9, in respect of any land, the Collector has not made an award under Section 11 with respect to such land, the owner of the land shall be entitled to receive compensation for the damages suffered by him in consequence of the delay.
17. This shows the compensation is to be awarded due to damages suffered by the Claimant in consequence of delay. Hence damages can be treated as compensation. Therefore, as the Claimant under law is entitled to get damages, hence he is also entitled to get interest on the damages in the same rates as he is entitled to get interest on the enhanced amount of compensation. Thus the Claimant is entitled to get interest @ 6 per cent per annum on the enhanced amount of compensation awarded by the Tribunal as well as on the amount of damages awarded by this Court. The interest of 6 per cent per annum shall be payable on the enhanced amount of compensation as well as on the amount of damages, from the date of award up to the time of payment.
18. In the result, the appeal succeeds and is allowed in part to the extent indicated above along with proportionate cost.